CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 22587/93                       by Christer ÖRJESTAM                       against Sweden         The European Commission of Human Rights (First Chamber) sitting in private on 18 October 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 27 May 1993 by Christer Örjestam against Sweden and registered on 7 September 1993 under file No. 22587/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Swedish citizen, born in 1957.         The facts of the case, as submitted by the applicant or apparent from the documents submitted, may be summarised as follows.         In 1983, 1988 and 1989 the applicant was convicted of various offences and sentenced to imprisonment. His ordinary prison sentence expires in 2001. From 4 to 18 January 1993 he took part in a prison strike. On 11 January 1993 the prison imposed a disciplinary punishment on him which had the effect that three of his prison days would not be considered as forming part of his sentence. The punishment thus had the effect of prolonging the overall length of his prison term by three days.         The applicant's sentence had previously been de facto prolonged by nineteen days by virtue of other disciplinary punishments.         By a note dated 29 January 1993 the prison, on 1 February 1993, notified the applicant of its decision of 11 January 1993. The note did not state why the disciplinary punishment had been imposed. According to the note, the applicant would have served two thirds of his prison term on 12 October 1995. This term was considered to include, inter alia, the three-day prolongation imposed on 11 January 1993.         On 1 February 1993 the National Prisons and Parole Board (Kriminalvårdsstyrelsen) upheld the applicant's disciplinary punishment on his appeal.         The applicant's further appeal was rejected by the Administrative Court (kammarrätten) of Jönköping on 19 February 1993. The Court provided no further reasoning but simply upheld the National Prisons and Parole Board's decision.         Leave to appeal was refused by the Supreme Administrative Court (Regeringsrätten) on 27 April 1993.         According to the Penal Code (Brottsbalken), a prisoner serving a prison sentence with a fixed term shall normally be released on parole after having served half thereof. If a sentence imposed for a particularly serious offence amounts to at least two years' imprisonment and provided there is a significant risk that the prisoner may resort to similar criminal behaviour upon his release on parole, such a release may only be ordered once two thirds of the sentence has been served (chapter 26, sections 6, 6a and 7).   COMPLAINT         The applicant complains that he has been unfairly treated, since his prison sentence has been prolonged by a body which does not fulfil the requirements of a "court". He invokes no particular Convention provision.   THE LAW         The applicant complains that he has been unfairly treated, since his prison sentence has been prolonged by a body which does not fulfil the requirements of a "court".   1.     The Commission observes that the applicant's ordinary prison sentence expires in 2001. Assuming that he can already now claim to be a "victim" under Article 25 (Art. 25) of the Convention as regards the alleged prolongation of that sentence, the Commission has first examined his application in the light of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention. This provision reads as follows:         "Everyone has the right to liberty and security of person.       No one shall be deprived of his liberty save in the       following cases and in accordance with a procedure       prescribed by law:         a. the lawful detention of a person after conviction by a       competent court; ..."         The Commission observes that the applicant's ordinary prison sentence is based on his convictions by regular courts. Neither his convictions nor the competence of those courts has been challenged by him. The Commission furthermore notes that on 12 October 1995 the applicant had served two thirds of his sentence, to which his disciplinary punishments had been added, and appears to have been released on parole. In these circumstances the Commission considers that the disciplinary punishment imposed on account of his participation in the prison strike is comparable to a loss of remission. It recalls that a prisoner is deprived of his liberty for the whole of his prison sentence and that any remission thereof is a mere privilege. It has therefore not been shown that the disciplinary punishment imposed on the applicant has resulted in any further deprivation of his liberty (cf., mutatis mutandis, No. 6224/73, Dec. 6.12.76, D.R. 7, pp. 55, 63). Accordingly, there is no appearance of any violation of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.         It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The Commission has next examined the application in the light of Article 6 para. 1 (Art. 6-1) of the Convention which, in so far it is relevant, reads as follows:         "In the determination of ... any criminal charge against       him, everyone is entitled to a fair and public hearing ...       by [a] tribunal ..."         In order to determine whether Article 6 para. 1 (Art. 6-1) is applicable under its "criminal" head, the Commission will have regard to the three alternative criteria lied down in the Court's case-law, namely the legal classification of the offence under domestic law, the nature of the offence as well as the nature and degree of severity of the penalty (e.g., Eur. Court H.R., Campbell and Fell judgment of 28 June 1984, Series A no. 80, pp. 34 et seq., paras. 67 et seq.).         In the first-mentioned respect the Commission finds no indication that the applicant's offence against the prison order was governed by Swedish criminal law. It furthermore finds that the offence was disciplinary in nature, given that it involved the violation of rules governing the operation of the prison. Finally, the penalty imposed was not of such nature and severity that the matter would thereby have been brought within the "criminal" sphere. Accordingly, Article 6 para. 1 of the Convention does not apply in the instant case.         It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber          President of the First Chamber          (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)